Love Box Co. v. NLRB

• Decision Date: 30 June 1969
• Docket Number: No. 6-68.,6-68.
• Citation: 412 F.2d 946
• Parties: LOVE BOX CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

412 F.2d 946 (1969)

LOVE BOX CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 6-68.

United States Court of Appeals Tenth Circuit.

June 30, 1969.

Marvin J. Martin, Wichita, Kan. (W. Stanley Churchill, and Martin, Cooper, Wooley, Churchill & Friedel, Wichita, Kan., with him on the brief), for petitioner.

Michael F. Rosenblum, Atty., NLRB (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, and Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, Washington, D. C., with him on the brief), for respondent.

Before BREITENSTEIN, HILL, and SETH, Circuit Judges.

SETH, Circuit Judge.

Love Box Co., Inc. petitions this court to review and set aside an order of the respondent National Labor Relations Board which found petitioner in violation of sections 8(a) (1), (3), and (4) of the National Labor Relations Act in that it interrogated its employees concerning their union activities and threatened them with economic reprisal, and in that it discharged employees Kenneth Mullins and Kenneth Larsh on account of their union activities.

The respondent cross-petitions this court for enforcement of its order that the petitioner cease and desist from discouraging union membership, that it reinstate the two discharged employees, and for other "affirmative relief."

The Board and the Examiner did not agree on the disposition of the charges. There was also a dissent to the Board's order.

It is, of course, incumbent upon this court in cases of this nature to determine whether substantial evidence in the record as a whole supports the findings of the Board. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1950). Moreover the Supreme Court there pointed out that this test is in no way modified when the Board and its Trial Examiner disagree although the supporting evidence may be considered less substantial in such cases. The Court also admonished Courts of Appeal that:

"* * * The Board\'s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board\'s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."

We recently pointed out in NLRB v. Sequoyah Mills, Inc., 409 F.2d 606 (Tenth Circuit, April 15, 1969), that findings of fact and drawing of inferences are for the Board.

In considering the first contested issue of whether petitioner violated section 8(a) (1) by interrogating its employees concerning their union activities and by threatening them with economic reprisal, we have reviewed the record as a whole and concude that there is substantial evidence to support the Board's finding. See NLRB v. Thompson Transport Co., 406 F.2d 698 (10th Cir.1969), and Cain's Coffee Co. v. NLRB, 404 F.2d 1172 (10th Cir.1968).

In regard to the order of the Board that employees Mullins and Larsh be reinstated, we find it advisable to again point out that employees may be dismissed for any reason, or no reason, as long as union activity is not the basis for their discharge. Cain's Coffee Co. v. NLRB.

In reviewing the discharge of employee Kenneth Mullins, the Trial Examiner found that he was discharged for cause, and the Board disagreed with his finding. Careful examination of the record indicates that Mullins was well known for the poor quality of his work. A few years prior to his discharge, he had been suspended because he consistently "ran bad orders," and he was the only man to have ever been so suspended by the plant. On the night of January 20, 1966, when Mullins reported for work, he was assigned to a machine different from the one he normally ran because several employees were absent. Mullins had operated the machine before, and the helper of the usual operator was there to assist him. That night nine defective orders out of thirty-two were produced which resulted in a total loss of approximately $650.00 to $700.00 in materials alone. Never had such a quantity of defective work been put out by any employee of the petitioner during the course of one shift. No complaint was made that the machine was defective or that it was in bad repair. Moreover, it is conceded that the sole responsibility for the work put out is the operator's — in this case, Mullins. The record clearly demonstrates that the unusually poor quality of Mullins' output was the reason for his discharge.

The Board, in overturning the Trial Examiner's conclusion, stated that it was most significant that the petitioner's general superintendent had reassured Mullins in December 1965 that despite an earlier disciplinary layoff as a result of poor quality work, "* * * as long as you do your work like you have been doing it, * * * I don't see that we will have any trouble." It is difficult for us to see how this statement in any way supports the Board's conclusion that Mullins was discharged for union activity. It would rather seem that it would lend support to the fact that Mullins, by achieving an all-time high of poor quality workmanship on the night of January 20, failed to do his job as he had been doing it and thereby created the situation which led to his discharge. We find that the evidence is not substantial to support the Board's finding and therefore its order will not be enforced as to Mullins.

As to employee...